United States: Preparing For Automated Vehicle Regulations And Enforcement In The Face Of Stalled Legislation In 2022

Over the past few years, there have been many discussions among federal, state, and automotive industry stakeholders regarding the need to remove regulatory barriers that may constrain development and widespread deployment of automated vehicles (AVs) and automated driving systems (ADSs).¹ The U.S. Department of Transportation (U.S. DOT) and National Highway Traffic Safety Administration (NHTSA or Agency) have issued several policy statements regarding AVs and advanced driver assistance systems (ADAS), published multiple rulemaking documents, and  held several public meetings seeking comments on removing regulatory barriers. In addition to these efforts, Congress, the automotive industry, consumer advocates, and other interested stakeholders have worked collaboratively to draft proposed legislation to facilitate advances in automated technologies and to clarify the distinct regulatory roles of state and federal governments.

Despite these efforts, persistent challenges continue to slow progress, even as the underlying technologies begin to see wider deployment. What future legislation and regulations at the federal and state level will look like remains unclear. In the meantime, NHTSA will likely continue to exercise its authority over safety-related defects to learn about current technologies through informal and formal information requests and to push back on technologies that NHTSA believes may pose a safety risk.

NHTSA will use its safety-defect authority to address emerging automation technologies.

NHTSA published an Advanced Notice of Proposed Rulemaking (ANPRM) in October 2018, seeking comments on a pilot program for collaborative research on motor vehicles with high or full driving automation. More than three years later, NHTSA appears poised to withdraw this rulemaking as it considers a new rulemaking titled "Expansion of Temporary Exemption Program to Domestic Manufacturers for Research, Demonstrations, and Other Purposes" (Proposed Exemption Program), as described in the U.S. DOT's Fall 2021 Unified Agenda of Regulatory and Deregulatory Actions) (Fall 2021 Unified Agenda). Under 49 U.S.C. § 30114(A), NHTSA has authority to exempt a motor vehicle or motor vehicle equipment from applicable federal motor vehicle safety standards (FMVSSs) on terms that NHTSA decides are "necessary for research, investigations, demonstrations, training, competitive racing events, show, or display." Although the language is not limited to importations, the exemption authority originated in joint importation regulations originally promulgated by NHTSA and Customs.² Based on this history, NHTSA has limited use of this exception to imported vehicles. Recognizing the disparity between domestically produced and imported vehicles with respect to the exemption authority in §30114(A), NHTSA explained, in its publication of the Proposed Exemption Program, that it would evaluate whether it could "level the playing field by expanding the coverage of exemption under that section to any vehicle, regardless of whether it is domestic or foreign, that meets the criteria of that section, particularly vehicles with high and full driving automation that do not meet existing standards and whose manufacturers are or seek to become engaged in research and demonstrations involving those vehicles." 83 Fed. Reg. 50872, 50882 (Oct. 10, 2018). Formally extending these exemptions to domestically produced vehicles would be welcome relief to entities manufacturing and/or testing them. As discussed below, manufacturers could use this rulemaking as an opportunity to obtain guidance related to permissible uses (other than destruction) for decommissioned test vehicles.

Other notable rulemaking activities listed in the Fall 2021 Unified Agenda, related to automated technologies, include:

• The Federal Motor Carrier Safety Administration (FMCSA) intends to amend the Federal Motor Carrier Safety Regulations (FMCSRs) to ensure safe deployment of ADS technologies in commercial motor vehicles (CMVs). The proposal would make changes to requirements related to operation, inspection, repair, and maintenance to recognize the difference between human operators and ADSs.
• NHTSA is analyzing comments to its 2019 ANPRM related to replacing rearview mirrors with camera systems.
• NHTSA intends to propose safety standards that would require automatic emergency braking in passenger cars and heavy trucks.
• NHTSA intends to issue in 2022 a final rule that would address regulatory barriers in crashworthiness safety standards and facilitate certification of vehicles without traditional driver controls. (NHTSA made public a draft of a final rule related to this rulemaking at the end of the Trump Administration, but the draft was never published in the Federal Register and the Biden Administration paused rulemakings that had not already been published.)

Manufacturers should monitor these rulemakings and advocate for standards that are technologically neutral and do not constrain future developments.

NHTSA will use its safety-defect authority to review the safety of emerging automation technologies.

NHTSA's rulemaking authority requires safety standards to be practicable, meet the need for motor vehicle safety, be stated in objective terms, and be "appropriate for the particular type of motor vehicle or motor vehicle equipment." 49 U.S.C. § 30111(a), (b)(3). These constraints make the process for developing safety standards – particularly related to emerging technologies – long and difficult. In contrast, NHTSA's authority to investigate potential safety-related defects provides the Agency with broad and flexible powers that the Agency can quickly deploy to ensure that emerging technologies satisfy the Agency's interpretation of its existing safety requirements.

Over the past year, NHTSA has demonstrated its willingness to use its investigatory and information-gathering tools to police ADAS and ADS technologies. In June 2021, NHTSA issued Standing General Order (SGO) 2021-01, requiring more than 100 vehicle manufacturers, suppliers, and vehicle operators to report certain crashes that involve vehicles using Level 2 (L2) ADAS and L3 and above automation to the Agency. NHTSA stated that it issued the SGO to obtain information on potential safety defects and to evaluate manufacturers' compliance with legal requirements to timely identify and conduct recalls for safety-related defects. "Given the rapid evolution of these technologies and testing of new technologies and features on publicly accessible roads, it is critical for NHTSA to exercise robust oversight over potential safety defects in vehicles operating with ADS and Level 2 ADAS." NHTSA SGO 2021-01 at p. 2.

NHTSA did not issue the SGO 2021-01 in conjunction with an investigation. The Agency explained that it issued the SGO to be consistent with NHTSA's mandate to prevent harm and not wait for injuries or deaths to occur. See id. These statements demonstrate NHTSA's intention to vigorously investigate automated technologies and related concerns such as distractions that may inhibit drivers from retaking control of the vehicle.

Manufacturers should anticipate liberal use of information requests not only to the manufacturer whose vehicles are the subject of a NHTSA investigation, but also to suppliers (including suppliers of software and other components of the ADAS and ADS systems) and peer manufacturers. Moreover, NHTSA's Chief Counsel has authority to issue special orders that are not directly connected to a specific defect investigation. As more ADAS technologies and AVs are deployed, we expect the Agency to use these investigative and information-gathering authorities to "exercise robust oversight." Id.

But what can we do with decommissioned test vehicles?

Certain vehicle manufacturers are permitted by statute to deploy  test and prototype vehicles that do not comply with, and have not been certified to comply with, otherwise applicable federal motor vehicle safety standards (FMVSSs). See 49 U.S.C. § 30112(b)(10). But vehicles using this exception must be used "solely for purposes of testing or evaluation by a manufacturer that agrees not to sell or offer for sale the motor vehicle at the conclusion of the testing or evaluation." Id. This provision is intended to facilitate the deployment of test vehicles that may not, or could not, be certified as meeting all applicable FMVSS. But it also prevents these test vehicles from being sold or otherwise becoming available to consumers. The "solely" language indicates that the vehicles, at least in the condition in which they were tested, cannot be sold at the conclusion of the testing or evaluation. Yet, the exception does not address what can be done with decommissioned test vehicles. Can the manufacturer modify the vehicle to remove the ADAS technologies and sell the vehicle as a conventional motor vehicle? Can the manufacturer export the vehicle to another country? Must the vehicle be destroyed? What amount of re-manufacturing would render the test vehicle sufficiently different to deem it a different vehicle? The statute does not address these questions, and NHTSA has not taken a position.

Some state regulations pose similar problems, which affect testing entities more broadly than vehicle manufacturers. For example, the State of California developed extensive regulations related to testing and deploying AVs. As part of that process, California now issues an "autonomous vehicle" title when registering these vehicles. Yet, California does not have a process for retitling a vehicle once it has been decommissioned, such as where an AV operator removes the ADS technology stack from a vehicle. Because California restricts who may operate AVs, a vehicle with an AV title may not be able to be sold, and the operating conditions placed on the vehicle by California's autonomous vehicle regulations arguably would continue to apply to a decommissioned vehicle.

Manufacturers concerned about the environmental impacts should consider these uncertainties when producing test vehicles. Manufacturers should develop plans for decommissioning vehicles and work with state regulators to determine the restrictions that apply to these former test vehicles. The industry should also consider addressing these questions in a future rulemaking related to testing exemptions.

Footnotes

1. A brief note regarding the terminology used in this article: To be consistent with the SAE Taxonomy, this article uses the terms "automation" and "automated in reference" to vehicle technologies that perform dynamic driving functions, rather than autonomous vehicles. The distinction between automation and autonomous is as follows: "Automation" describes vehicle technologies that control discrete driving functions through software, while "autonomous" implies that the vehicle itself determines all driving functions, routes, and destination without outside input. In the hope of maintaining this distinction, we will use the term "automated vehicle" rather than "autonomous vehicle." Some regulations do not maintain this distinction – for example, the California Code of Regulations uses the term "autonomous vehicle." See 13 Cal. Code Reg. § 228.02(b) (defining "autonomous vehicle" as having "the capability of performing the dynamic driving task without the active physical control or monitoring of a natural person"). In contrast, the U.S. DOT "The Automated Vehicles Comprehensive Plan" and NHTSA rulemaking documents refer to automated vehicles and automated driving systems (ADS). See here: https://www.transportation.gov/sites/dot.gov/files/2021-01/USDOT_AVCP.pdf.

2. On October 31, 1988, Congress amended the National Traffic and Motor Vehicle Safety Act of 1966 by passing the Imported Vehicle Safety Compliance Act of 1988 (the 1988 Act). As the name suggests, the 1988 Act revised the statutes and regulations related to importing vehicles and equipment. The 1988 Act first codified the special exemption authority in what is currently § 30114(A). These exemptions originated in joint regulations promulgated by NHTSA and Customs in the early 1970s. See 19 CFR § 12.80(b)(1)(vii) (permitting temporary importation of a vehicle solely for the purpose of show, test, experiment, competition, repair or alteration).

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